The Substantive Law of Articles 85 to 91

  • R. Graupner


Member State National Authority Dominant Position Resale Price Maintenance Unfair Competition 
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  1. 2.
    See thereon decision of the Kammergericht Berlin of January 12, 1960, WuW 1960, p. 446, and Letter of the Federal Cartel Office of August 6, 1962, WuW 1962, p. 716. For further references, see Gemeinschaftskommentar, pp. 131, 154, 1163.Google Scholar
  2. 2.
    See infra, p. 35 For the merely limited application of the Rules of Competition to agricultural products and traffic, see infra, pp. 34–36 and on the position of public authorities in the German Cartel Law, see Gemeinschaftskommentar, pp. 1164 ff.Google Scholar
  3. 2.
    Cf. Gemeinschaftskommentar, p. 1454: “Only fair competition should be the subject of protection of the Rules of Competition… consequently, agreements across the frontiers relating to the observance of provisions against unfair competition should not be considered a violation of Art. 85. Difficulties may however arise from the divergency in the legal treatment of questions of competition in the various countries.”Google Scholar
  4. 2.
    See Memorandum of the Commission of the E.E.C. in regard to the Action Program for the Second Stage of October 24, 1962, KOM (62) 300 Ch. 2, pp. 29/30, 35; see on the discussion thereon, General Report on the Activities of the E.E.C., 1962/1963 (English Edition), p. 25.Google Scholar
  5. 2.
    Cf. Standard Oil Co. of California and Standard Stations, Inc. v. United States, 337 U.S. 293 (1949); United Shoe Machinery Corp. v. United States, 258 U.S. 451 (1922) but cf., in contrast, United States v. Jerrold Electronics Corp., 187 F. Sapp. 545 (E.D. Pa.Google Scholar
  6. 1.
    See Franceschelli in Cartel and Monopoly, Vol. 1, pp. 297, 303. It seems that the grant of “class exemptions” by the Commission requires an enabling Regulation by the Council of Ministers by virtue of Art. 87(2) (b), see Deringer, op. cit.,ns. 16–19 to Art. 85(3). A Regulation to that affect has quite recently been issued, see Preface.Google Scholar
  7. 3.
    See P. D. Schapiro: “The German Law against Restraints of Competition — Comparative and International Aspects,” 62 Columbia Law Review (1962), pp. 1, 13, 204.Google Scholar
  8. 4.
    Whilst in the German Decartelisation Law the Rule of Reason was applied, it has not been accepted into the German Cartel Law since this Law is meant to have taken account of all the situations in which the stringent American antitrust law called for its mitigating effect (Baumbach-Hefermehl, op. cit., Introduction, n. 12). As regards the Rules of Competition, this question is hotly discussed. See Honig a.o., op. cit., pp. 15 f; contra, E. Wolf, A.J.C.L. (1962), pp. 539–559 who argues for the application of this Rule. Spengler in Gemeinschaftskommentar, p. 1448 favours the adoption of at least the narrower doctrine of ancillary restraint of trade as developed in United States antitrust law (see thereon Oppenheim, op. cit., pp. 2–5).Google Scholar
  9. 3.
    The German Cartel Office could have done this; see decisions of the Cartel Office of August 23, 1960 (“Terazzo” case), WuW 1960, p. 805, and of June 20, 1960, ibid., p. 818; see, further, judgement of the District Court of Düsseldorf of December 6, 1960, ibid., 1961, p. 566. (In the two decisions of the Cartel Office exemption under Article 85(3) was granted).Google Scholar
  10. 8.
    The Commission had apparently given no such ruling but, for a recommendation by the Cartel Office to the Commission, see Annual Report of the Activities of the Federal Cartel Office for the Year 1960, p. 61.Google Scholar
  11. 4.
    Art 5 of Regulation No. 17 as amended by Regulation No. 59 of July 3, 1962. The original date was August 1 1962.Google Scholar
  12. 6.
    In a decision of May 30, 1963 the Appeal Court of Munich (WuW 1963, p. 626) has held that this is also the case even if their violation of Art. 85(1) is to be presumed.Google Scholar
  13. 2.
    Of November 5, 1963, J.O. 1963, p. 2696.Google Scholar
  14. 8.
    I.e., always subject to the provisions of Art. 8 of Regulation No. 17.Google Scholar
  15. 2.
    See the detailed study of this special problem by H. van den Heuvel, “Civil Law Consequences of Violation of the Antitrust Provisions of the Rome Treaty,” in 12 A.J.C.L. (1963), pp. 172–193.Google Scholar
  16. 2.
    Art. 1 of the Law of June 28, 1956 as amended by the Law of July 16, 1958, Staatsblad 1956, No. 401; 1958 No. 412.Google Scholar
  17. 3.
    Law of May 27, 1960, Moniteur Belge, 1960, p. 4674.Google Scholar
  18. 2.
    See Honig a.o., op. cit., p. 37. For a comprehensive review of the present discussion of this topic, see Deringer, op. cit., Art. 86, ns. 10–19.Google Scholar
  19. 1.
    See Deringer, op. cit., Art. 86, n. 12, and Spengler in Gemeinschaftskommentar, p. 1429.Google Scholar
  20. 2.
    See Oppenheim, op. cit., pp. 397 ff., 414 ff. See also note in 54 Columbia Law Review (1954), p. 580.Google Scholar
  21. 3.
    U.S.v. E.I. Dupont de Nemours & Co., 351 U.S. 377 (1956), at p. 395.Google Scholar
  22. 4.
    This would seem to be the leading opinion (see Deringer, op. cit., n. 31, 33 to Art. 87). The same view is taken by Gleiss-Hirsch, AWD 1963, pp. 34, 35 (it is therefore surprising that in Cartel Law of the European Community,1963, p. 91, of which the same writers are co-authors, the opposite opinion is expressed). Spengler in Gemeinschaftskommentar,p. 1454 considers the issue as still undecided.Google Scholar
  23. 4.
    Thus, the German Federal Cartel Office by an Order of June 28, 1961 (WuW 1961, p. 737) approved an export cartel concluded between a number of German enterprises by which these stipulated minimum prices for half-finished goods for export to foreign markets with the exception of the other E.E.C. Member States (and some other countries).Google Scholar
  24. 4.
    F. Supp. 504 (S.D.N.Y. 1951); F. Supp. 215 (1952). In these two cases foreign companies which did not carry on business in the United States (at least not in the generally accepted sense) were made parties to the proceedings. Another case belonging to that category is U.S. v. General Electric Co., 82 F. Supp. 753 (D.N. J. 1949), involving the Dutch Philips Corporation.Google Scholar
  25. 5.
    By H. Smit, “International Aspects of American and Netherlands Antitrust Legislation,” 5 Nederlands Tijdschrift voor Internationaal Recht (1958), p. 274. This article and that of Prof. J. H. W. Verzijl, “The Controversy regarding the so-called Extraterritorial Effect of the American Anti-Trust Laws,” ibid., 8 (1961), p. 3, present an excellent survey of the American practice, combined with a critical examination of this practice in the light of public international law. For American sources, see Brewster, op. cit., and the recent survey by Kirkpatrick, “U.S. Antitrust Law and its Relations to American Firms Doing Business within the E.E.C.” in Doing Business in the Common Market, p. 152. For a critical discussion see George W. Haight, “The Sherman Act, Foreign Operations and International Law” in Legal Problems in International Trade and Investment, New York, 1962 and, under political aspects, Thomas E. Dewey, Antitrust Barriers to Foreign Policy Goals, 33 New York State Bar Journal (1961), p. 21.Google Scholar
  26. 3.
    In the “strange case” of Cattermole v. Borax & Chemicals Ltd., (1946) 31 Report of Tax Cases 202, a fine (legally voluntarily but economically unavoidably) paid by an English subsidiary of an American company indicted for violation of the Sherman Act on the compromising of the antitrust proceedings with the U.S. authorities was not allowed as a deductible trade expense.Google Scholar
  27. 1.
    For a similar ruling see the recent decision by the Supreme Court in Continental Ore Co. v. Union Carbide and Carbon Corp., 370 U.S. 690 (1962).Google Scholar
  28. 2.
    See United States v. Minnesota Mining and Manufacturing Company, 92F. Supp. 947 D. Mass (1950); United States v. The Watchmakers of Switzerland Information Center, Inc., ut supra, p. 43 n. 7.Google Scholar
  29. 4.
    See Rabel, The Conflict of Laws, Vol. 2 (1947), p. 300.Google Scholar
  30. 1.
    Pursuant to Art. 37 of the Treaty, the Commission issued three recommendations to France to transform the tobacco, matches, potash and spirits monopolies (J.O. 1962, pp. 1500, 1505, 1506; 1963, p. 2858), one to Italy regarding the monopoly of the trade in matches (J.O. 1962, p. 1505) and one to Germany in respect of the monopoly in spirits (J.O. 1963, p. 2857).Google Scholar
  31. 1.
    General Agreement on Tariffs and Trade of October 30, 1947, see supra,p. 8 n. 3 and Art. 10 of the O.E.E.C. Code of Liberalisation, New Edition brought up to July 1, 1960, O.E.E.C., Paris (1960), see Appendix F, infra,p. 272.Google Scholar
  32. 2.
    See for a comprehensive treatment of this subject the publication of GATT, Antidumping and Countervailing Duties, Geneva (1958). (GATT/1958–2).Google Scholar
  33. 3.
    See v.d. Groeben in WuW 1961, pp. 373, 393 ff., and General Report on the Activities of the E.E.C., 1962/1963, pp. 67 ff.Google Scholar
  34. 1.
    Regulation No. 8 of the Commission for Carrying into Effect Article 91(2) of the Treaty establishing the European Economic Community of March 11, 1960, J.O. 1960, p. 597, see infra, Appendix E, infra, p. 222. This Regulation has been amended (in regard to a minor point) by Regulation No. 13(2) of March 15, 1961, J.O. 1961, p. 585.Google Scholar
  35. 4.
    Statement of a representative of the Federal Cartel Office (submitted in Court proceedings under s. 90 of the German Cartel Law) of December 12, 1960 (WuW 1961, p. 303). This statement was submitted in the proceedings Braun v. Ruhrland in the Court of first instance. The case was finally decided by the German Supreme Court on June 14, 1963 (see Part II, infra, p. 123). However, in none of the three judgments was the relationship between Art. 85 and Art. 91 discussed.Google Scholar

Copyright information

© Martinus Nijhoff, The Hague, Netherlands 1965

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  • R. Graupner

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